This article is therefore aimed at highlighting the role of the National Assembly in the Gambia by pointing out the powers and tools of accountability at its disposal as stipulated in the 1997 Constitution.

Constitution building in the Gambia dates back to the colonial period particularly when the country became a full-fledged colony between 1894 and 1902. In order to ensure effective control over the Gambia the British had to develop various constitutions through which they built institutions to enforce their authority over the lands and people of the Gambia.

Two of the foremost institutions through which the colonialists governed the country were the Legislative Council and the Executive Council. The Legislative Council for the Gambia met for the first time in 1843. Since then various constitutions were created to expand and determine its mode of membership, i.e. either by selection, nomination or election. Usually membership was concentred on Europeans until 1883 when a Gambian, J.D. Richards was appointed into the body. But by 1947 a new constitution was created that allowed for the election of an African representative from the colony for which EF Small was elected for Banjul.

The Legislative Council was eventually abolished in 1960 to be replaced by a House of Representatives following the 1959 constitutional conference and the subsequent creation of a new constitution by Governor Edward Windley. That constitution established the House of Representatives consisting of 34 members, 19 of whom were directly elected. It also gave the right to the people of the protectorate for the first time to directly elect their representatives. It was this constitution that actually opened the floodgates for the journey towards Gambian Independence.

The constitutional development process continued in 1961 when another conference was held in Banjul from 4 – 11 May 1961. This led to the London constitutional conference which was held in the same year on July 24. It was these conferences that gave birth to the 1962 Constitution which set the stage for elections that year and constituted the House of Representatives thus; 25 seats for Protectorate, 7 seats for Colony and 4 Chiefs. Consequently the 1962 elections resulted in PPP winning 18 seats, UP 13 seats and DCA with 1 seat. The 1962 Constitution also created an Executive Council headed by the Governor, a prime minister, an attorney general and 8 other ministers.

The significance of the 1962 constitution was that it created 32-member representatives and set the motion for the Gambia to attain internal self-rule. Therefore when the PPP won the majority seats, the Governor appointed Jawara as Premier and asked him to form his cabinet. In October 1963 the colonialists gave the country full internal self-rule status and Jawara then became Prime Minister.

In the following year, 1964 the most significant constitutional conference was held in London where the subject matter was the independence of the Gambia. This conference led to the enactment of the Gambia Independence Act in December 1964 by the British Parliament with the title, ‘An Act to make provision for, and in connection with, the attainment by The Gambia of fully responsible status within the Commonwealth’.

The London conference agreed that the Gambia would become independent on 18 February 1965 on the basis that it will seek membership of the Commonwealth and that the Queen of England would also become the Queen of the Gambia. On the appointed date, at a huge colourful ceremony in Banjul the Union Jack was lowered and the Gambian flag was hoisted. Jawara was formally confirmed as Prime Minster and Sir John Paul was appointed as Governor-General. In 1966, Paul was replaced by Sir Farimang Singhateh as the Governor General.

From the foregoing it is clear that the Gambia was indeed not an Independent country by 1965 but a British dominion with internal self-government status. Hence the journey towards independence continued with two referendums on the question of being a republic. The first referendum was held in November 1965 but the ‘Yes Vote’ fell short of the two-thirds majority by only 758 votes. The second referendum was held in April 1970 where the two-thirds majority was met and the Gambia was declared an independent republic on 24 April 1970.

The result of that referendum meant that another constitutional process had to emerge leading to the creation of the 1970 Republican Constitution. However by then this constitution was already passed by the House of Representatives on 18 December 1969 but then assented to by the Queen of England on 24 April 1970. That constitution unified the office of Head of State into an Executive Presidency and abolished the office of the Governor General, as head of state and representative of the Queen of England. Jawara became the first President of the Republic and Sir Farimang Singhateh ceased to be Governor General.

There exist fundamental differences between the 1970 and 1997 constitutions. For example while Section 1 of the 1970 Constitution stated that the Gambia was a sovereign republic yet it did not establish on who resided that sovereignty. In the 1997 Constitution, section 1 subsection 2 clearly states that the sovereignty of the Gambia resides in the people of the Gambia and the legitimacy of the state is derived from the people. The 1970 Constitution did not have a preamble which is contained in the 1997 Constitution. While both constitutions have stipulated the fundamental rights and freedoms of Gambians, yet the 1997 constitution was more extensive and explicit under the Chapter Four. Furthermore the 1970 Constitution did not provide for the establishment of most state institutions as is the case in the 1997 Constitution. In fact the 1970 Constitution was enacted as an act of parliament and not subjected to a referendum as was the case with the 1997 Constitution. However the 1997 Constitution also leaves much to be desired especially given the uncountable amendments it has been subjected to over the period to satisfy the whims and caprices of former president Yaya Jammeh.

In building a new constitution for the Third Republic, major lessons must be learnt from both Independence constitutions to ensure that fundamental republican and democratic values, standards, institutions and processes are clearly provided and protected to ensure good governance. This includes presidential term limits, limitation of the powers of the president, expansion of the rights of citizens and strengthening the oversight functions of the parliament.

A constitution of any society does not only provide a legal basis for the existence of that body but also establishes the rights and obligations of the members individually as well as the body itself as a whole. A constitution further defines and sets the aims and objectives of that body as well as the values, standards, rules, processes and institutions of that society. Hence a constitution therefore is also a performance assessment and an accountability tool that determines the health and strength of any body and its members. For that matter a constitution is usually set in a kind of language and structure that makes it long-lasting, difficult to change and sustainable in order to cater for the present and the future needs of society at the same time.

The precommitment theory by famous Norwegian political theorist, Jon Elster presupposes that the acquisition of greater choice, and freedom, is not always desirable (Elser, 1979). At a later stage, one might need to limit himself to a certain course. This denies him the option to choose a specific act or course and thus provides for rationality as time goes by; one may think that X is the right course now, but worry that when the opportunity to choose Y arises, one might choose Y instead. This makes choosing Y impossible, more difficult, or less likely to allow for the prevalence of rationality regardless of intervening factors.

From independence, most countries in Africa have had their Constitutions changed or amended so as to accommodate new ideals and values. The Gambia is no exception to this. But what constitutes change? Where does the authority to bind people of these changes come from? It is one thing for A to bind himself and another for a group of people to be bound my Constitutional provisions. Two notions are already well known; First, a Constitution binds everyone, including the minority. Second, Constitutional commitments are vague. Free speech, and rule of law are examples. This vagueness comes in two spheres; committing a right with one hand and making it all together more problematic and impossible to achieve. This makes Constitutions contentious and political documents. The Constitution of The Gambia reads “We the People.” because it was enacted by the majority but it somehow is taken as the general will of the people only because the majority endorsed it.

"We the people of The Gambia have accomplished a great and historic task. We have had our say on how we should be governed. For this Constitution contains our will and resolve for good governance and a just, secure and prosperous society." - Preamble of the 1997 Constitution

The division in Constitutional amendments are not internal but rather, they are divisions between the majority and the minority. Constitutions that are strong, will always bind generations to come to the ideals and values of those that came before them without their vote or consent. As stated by George Washington to the framers of the US Constitution, “I do not think we are more inspired, have more wisdom, or possess more virtue, than those who will come after us” (Ackerman, 1991) It is not clear to me why one generation is at liberty to bind a future generation but what I do know is that it is possible for a particular generation to want to continue practicing the ways and appreciate the values of the past.

The interesting argument here is not just the mere fact that Constitutional commitments are binding on everyone including the minority who didn’t consent to the change in the first place; rather the commitment would be to bind other people who would challenge another person’s view. Those that drafted the Constitution may not worry about their own acts or omissions in certain times instead they would be worried about others who don’t even share the same values as them. The Constitution commitment then “changes from a technique of simple self-binding into a restrain on opposition to certain contested political values”. Society will always disagree both in “calm” and “lucid” moments, hence, the viewpoint that commitments are entrenchments of partisan politics” (Waldron, 1998). This then makes Constitutional commitments anti-democratic which further raises a “counter majoritarian difficulty” so long as it holds back the popular will of the people.

Considering the question of who makes a Constitutional commitment, it is expected that the majority that consents to the ethos of the Constitution are cognisant of what it is that they have agreed to commit to. A commitment to Constitutional rights such as free speech is vague and abstract. Interestingly, Justice Marshall has pointed out that hate speech laws should be focused “on the nature of the ideas expressed, rather than on the likely effects of the expression”.[1] There is however a difficulty in applying this distinction. A person that is committed to free speech is bound to accept or reject it without realising the practicability of the right. This is where judicial review comes in. By committing to the right to fair trial, “the people” of The Gambia consented to the use of strict rules of evidence that would offer a frustrating position to any prosecution. An argument that the people that drafted or supported the right to fair trial understood this implication would be a difficult one.

This makes the commitments of Constitutional rights misleading as people in most cases are bound to obey these Constitutional commitments without knowing the consequences of the Constitutional commitment in question. But was this commitment made with full consent? It’s only fair that this question is asked. By binding ourselves to the commitments of the Constitution, we are also binding ourselves to the interpretation of judges who are not answerable to the people for their acts and also independent from any sort of influence from any authority or person. This then draws the conclusion that Constitutional commitments and judicial review have the same problems; they are both undemocratic.

The case for Constitutional change and amendment is not as clear-cut as most people think. Because Constitutional commitments bar the pursuit of the popular will, it first of all makes us not self-binding to the Constitution and secondly, those who committed to the Constitution will never fully understand what they have committed to.

One point that was reached by Alexander Bickel is that “courts principles are required to gain assent, not necessarily to have it” (Bickel, 1986). This assent could be seen “in a rather immediate foreseeable future”. Bickel concluded by stating that in the event the assent does not materialise, the power of the people to overturn an interpretation of a constitution that they did not consent to “is how and why judicial review is consistent with theory and practice of political democracy” (Bickel, 2390. Hence, should a Constitution claim some inherent power to have a moment where it can say without a preceding legal order, there has to be some theory of constituent power? If so, does The Gambia need formal or substantive theory of Constitutional change or amendment?

[Editor's Note: Madi Jobarteh's article was commissioned by International IDEA and was originally posted on ConstitutionNet, IDEA's online knowledge platform for supporting constitution builders globally.

As The Gambia transitions to a democratic dispensation, constitution reform, to be led by an independent Commission, will be central to the process. The success of the constitution building exercise is a test of the capacity of the new dispensation to meet popular expectations for a new and democratic Gambia. To this end, provisions for an inclusive and participatory constitution making process must be taken to heart and rigorously given effect – writes Madi Jobarteh.

Introduction

In December 2017, the Gambian National Assembly adopted a Law establishing a Constitutional Reform Commission that will oversee the writing of a new constitution for the country. When finalized, the constitution will be the country’s third since 1970 when The Gambia first became a republic. The 1970 Constitution was overthrown alongside the then government, one of the handful of democratic regimes in Africa at the time, by the military in 1994, led by former President Yahya Jammeh. The military government organized a referendum on a new constitution in 1996, ushering in the second republic in 1997. Lasting 22 years, the Alliance for Patriotic Reorientation and Constitution (APRC), a political party formed by military officers who staged the coup, dominated the Gambian political landscape, allowing it to manipulate the political process, including through numerous constitutional amendments.

Jammeh’s dominance came to an abrupt end after the December 2016 presidential elections when he lost to current President Adama Barrow, a joint candidate of the opposition coalition. After initially accepting defeat and subsequently retracting, Jammeh was forced to leave the country following the military intervention of the ECOWAS sub-regional force. Both the campaign Manifesto and the ‘controversial’ memorandum of understanding of the opposition coalition promised the creation of a new constitution alongside other legal and institutional reforms in order to ensure a thorough revision and change of the political system. On 11 December 2017, eleven months after the new government took office, the Minister of Justice, Aboubacarr Tambadou, finally presented the Constitutional Review Commission Bill before the National Assembly. It took the Assembly only one day and one session to approve the Bill, unanimously. The director of press at State House indicated that the president signed the Bill into law a week after the parliamentary approval. Nevertheless, the members of the Commission are yet to be appointed.

Why a new Constitution?

The need for a new constitution has long been on the minds of Gambians precisely because of the numerous amendments that the 1997 Constitution was subjected to over the years. During the electoral campaign prior to the 2016 presidential elections, the opposition coalition particularly listed several provisions that they highlighted as requiring amendment in order to ensure democratic governance and better protection of human rights. Above all, they contend that the 1997 constitution has provisions that disempower both citizens and lawmakers while at the same time giving more power to the president. In addition, many Gambians consider a number of issues that must be incorporated into their constitution in order to end self-perpetuating rule, ensure effective separation of powers and restrain the government in the exercise of its functions.

The 1997 Constitution is seen as a relic of the Jammeh government and its authoritarianism.

Both the current government and citizens appear to agree that, given the numerous amendments to the constitution and the several undemocratic provisions, the need for a new constitution cannot be over-emphasized. Furthermore,the 1997 Constitution, nicknamed the ‘Jammeh Constitution’, is seen as a relic of the Jammeh government and its authoritarianism, which has tainted its legitimacy among the people, civil society and the new powerholders. Accordingly, the reform process is likely to go beyond removing the regressive amendments and affect the whole constitutional framework.

Potential areas of reforms

While the constitution reform process will lead to a new constitution, there are certain areas that will attract particular attention. There is widespread agreement that the constitution must provide for only two five-year presidential term limits. Indeed, the inclusion of term limits is specifically mentioned as one of the guidelines in the Constitutional Review Commission Bill. The term limit, which was in the original draft of the 1997 constitution, became surreptitiously absent when that constitution was eventually put to a referendum in 1996, to allow Jammeh, who was in his early 30’s, to run for reelection without limits.

Other issues of concern that have been well highlighted by the new government in their memorandum of understanding include the 2003 amendment of section 48(3) of the constitution that changed the voting system for presidential elections from 50%+1 absolute majority, with a second round if no candidate obtained the required vote in the first round, to the first-past-the-post system. Jammeh adopted the new system to ensure continuous victory in a country with a history of weak and fragmented opposition parties. Nevertheless, in the December 2016 elections, the main opposition parties overcame their differences and fielded a joint candidate. The plurality electoral system allowed Barrow to win the elections with 43.3% of the votes (to Jammeh’s 39.6%), without the need for a second round of elections. A former ally of Jammeh won around 17%.

The first-past-the-post electoral system for the presidency, term limits, the composition of the Electoral Commission, and the manner of loss of parliamentary membership will be among the focus of reforms.

One of the overbearing powers that Jammeh had exerted over the parliament, particularly his party members, was in section 91 that stipulates that a parliamentary member can lose his seat if dismissed from her or his party. Because of this provision, in the absence of intra-party democratic culture and processes, it meant that, as the party leader, Jammeh could control parliamentarians to submit to his whims and caprices at the threat of sacking them from the party, thereby causing them to lose their seats. Considering that members of parliament are elected through the first-past-the-post electoral system in single-seat constituencies, candidates were elected formally for their individual merits, although they may campaign under the banner of their parties. The effective empowerment of a party leader to remove members of parliament was therefore unscrupulous.

Other provisions that may require refinement include section 42(6) which allows the president to unilaterally remove commissioners of the Independent Electoral Commission, who are also appointed by the President in consultation with the Judicial Service Commission and the Public Service Commission. Even though the provision requires that, before a commissioner may be removed, a tribunal be set up to investigate the matter, several commissioners have been removed without the setting up of any tribunal. Similarly, appointments were carried out without any consultation with the specified commissions.

In a manner that limits citizens’ ability to stand for presidential elections, section 62(1)(b) sets a lower and upper age limit of 30 and 65 years respectively. This particular provision became prominent after it was recognized to bar the leader of the then largest opposition party, Ousainou Darboe of the United Democratic Party (UDP), a veteran politician who contested and lost against Jammeh in four presidential elections (1996, 2001, 2006, and 2011).

Irregularities in the enactment of the amendment removing upper age limits on the presidency and vice-presidency raise concerns regarding the integrity and credibility of the constitutional reform process.

Interestingly, despite the clamor for a new constitution, the new government has since amended this provisionby removing the upper age limit altogether, with a view to enable the appointment of an older vice president. The amendment also extended the mandatory retirement age of superior court judges. Since assuming office in January 2017, Barrow never appointed a vice president because it was widely believed that he intended to appoint the influential ‘mother’ of the nation, Mrs. Fatoumatta Jallow Tambajang, who is above the constitutional age limit of 65 years. As it turned out, many saw the delayed appointment of a vice president and the eventual amendment of the provision to remove the upper age limit as an attempt to cater for Mrs. Tambajang.

This action by the new government raises concerns about its sincerity and commitment to system change, and the integrity and credibility of any future constitutional reform process. It is perplexing to notice certain piecemeal amendments being undertaken, as if a new constitution would not be coming. After an initial faux pasin April 2016, when the government apologized for taking a wrong approach to the amendments, in July 2016, the Minister of Justice formally presented the constitution amendment bill before parliament, which was eventually approved.

Composition and mandate of the Commission

Under the Act, the Chief Justice will chair the Commission. A vice-chairperson will be appointed by the Attorney General, who also appoints a secretary to lead the secretariat in charge of the day-to-day administration of the Commission. The President of the Republic will appoint nine more members taking into account the professional, geographical, professional and gender diversity of the country. There is no requirement for parliamentary approval of the appointments. The members may not be members of the National Assembly or of the security forces. There is no similar exclusion of ministers or high-level officials of political parties.

The Commission is required to seek the opinion of the people of The Gambia, including the diaspora.

The Commission will take decisions by consensus, and in its absence by majority vote, with a quorum of at least six members. The Act allows the Commission to establish technical committees, which may include non-members. The Commission will operate for up to 18 months, with a possibility of a six-month extension by the president on the proposal of the chairperson.

The principal mandate of the Commission is to a draft a new constitution, and to prepare an accompanying report. In discharging its responsibilities, the Commission is required to seek the opinion of the people of The Gambia, including the diaspora, and to invite professional, civic, political and other organizations to appear before it and make presentations. The Commission must safeguard and promote a number of substantive principles, including the republican form of government, secularism, rule of law, fundamental rights, and the separation of powers. Notably, it must introduce presidential term limits. Nevertheless, the Act leaves open the length of each term and the number of terms a president may serve.

The Act proclaims the independence of the Commission, which is not subject to the direction or control of any person or authority. The members of the Commission will serve for the entire duration of the operation of the Commission, without the threat of removal on unfounded grounds. Once it has prepared the new draft constitution and the report, it submits it to the President and publishes the draft and the report in the government gazette and other platforms as may be desirable. Within 60 days of receiving the draft, the president must forward a ‘copy’, indicating that the president may not alter the draft, to the National Assembly, which will debate and approve the draft in accordance with the relevant provisions of the current constitution. Fundamentally, the Assembly must approve the draft constitution ‘without amendment’.

The President and National Assembly may not alter the draft constitution prepared by the Commission.

To ensure legal continuity, the new constitution will be adopted in the manner prescribed in the current constitution. Accordingly, the adoption of the draft constitution will require approval by 3/4th of the members of the National Assembly, and by 75% of those who vote in a referendum where at least half of all the eligible voters actually vote (i.e. there is a turnout threshold of 50% under article 226(4) of the current constitution). While presidential elections since 2000 have all secured higher than 50% turnout, turnout in all legislative elections has consistently failed below the half mark. The active support of all major political groups will be necessary to ensure the required voter turnout, and level of approval. This requires that the provisions of the Act for an inclusive and participatory constitution making process are taken to heart and rigorously given effect.

Concluding remarks

The enactment of the Bill establishing the Commission is welcome. Nevertheless, there remain concerns as to the appointments of its members. In particular, members of civil society are concerned about the independence, efficiency and transparency of the appointment process, the institution itself as well as its processes. So far, Gambian civil society organizations have not had a direct engagement on the terms of the Commission, with the drafting of the Bill largely undertaken within the walls of the ministry of justice.

There is high public expectation for a new constitution given how deeply the Gambian state was effectively personalized and abused by the former president. Thus, the catchphrase in the country is ‘system change’. There appears to be unanimous agreement that the country needs an overhaul of the current political and institutional framework in order to usher in a whole new democratic dispensation. However, there is also huge contention as to the nature, extent and process of the system change. While pro-government constituents appear to believe that in fact system change is unfolding, many on the other side claim there has been no or little change so far. The success of the constitution building exercise is highly viewed as a test of the capacity of the new dispensation to meet renewed popular and political expectations for a new and democratic Gambia.

Madi Jobarteh is a Gambian human rights defender. He is currently the program manager of The Association of NGOs in The Gambia (TANGO).